5 Things You Should Know About Employer Retaliation

Retaliation is an illegal action that an employer takes against an employee to punish him or her for engaging in a legally protected activity, such as reporting wrongdoing or participating in a discrimination or harassment investigation. In fact, retaliation was the most common type of charge filed with the Equal Employment Opportunity Commission (EEOC) in 2018.

If you believe you were the victim of an adverse employment action — such as being demoted or fired — because you reported or confronted wrongdoing in your workplace, you may be entitled to compensation as a victim of workplace retaliation.

Who Exactly Is Protected From Workplace Retaliation?

Equal Employment Opportunity Laws (EEO) laws exist to prohibit the punishment of any job applicants or employees who assert their rights to be free from discrimination in the workplace. These activities can take many forms, but they all fall under the category of protected activity.

According to EEO laws, it is illegal to retaliate against any job applicants or employees for:

1. Filing or being the witness to an EEOC charge, complaint, investigation, or lawsuit.
2. Discussing salary information with managers or co-workers in order to uncover the existence of potentially discriminatory wages.
3. Providing answers during an employer investigation of harassment or discrimination.
4. Disobeying orders that may result in harassment or discrimination.
5. Denying sexual advances or coming to the aid of others who are being harassed.
6. Requesting accommodation for a disability or a religious practice.
7. Discussing employee harassment or discrimination with an employer.

It’s important to know that an employer is still free to discipline or fire an employee as long as they are motivated by non-retaliatory reasons. Further, an employer is forbidden from doing anything in response to an employee’s EEO activity that may serve to discourage an employee from resisting or complaining about discrimination or harassment in the workplace.

The following instances could count as retaliation if they are taken in response to an employee’s EEO activities:

• Transferring an employee to a less desirable role.
• Reprimanding an employee, or giving a poor performance evaluation that is worse than it really should be.
• Making an employee’s work life more difficult.
• Engaging in verbal or physical abuse.
• Threatening to make or actually making reports to the authorities (for example, contacting the police or an immigration agency).
• Spreading false rumors or treating family members negatively.

How Do I Know If My Employer Is Retaliating Against Me?

The general rule is that only changes which have an adverse effect on your employment count as retaliatory.

Let’s consider an example. Say that you complained about a manager’s sexual harassment and his attitude towards you becomes different from one day to the next. However, if he simply acts more distant and not as “friendly” as before, his behavior is not retaliatory.

However, there’s reason for concern if something negative happens to you immediately after filing a complaint, or for just discussing a potentially problematic issue. Say that you were fired for not “being a good fit” after you complained to your company’s Human Resources department about your boss sexually harassing you. In that case, you may have a very strong argument that your boss retaliated against you for complaining about him.

Finally, not all instances of retaliation are as obvious as being fired for reporting harassment. Retaliation may also include suddenly being micromanaged by your boss or being excluded from staff meetings that are relevant to your work.

When Do Employer Actions Become Retaliatory?

Retaliation is any illegal action that an employer takes against an employee to punish him or her for engaging in a legally protected activity. Retaliation includes all actions that are “materially adverse.” In other words, these are actions which could deter someone from engaging in a protected activity.

Materially adverse actions include:

• Denial of promotion.
• Not being offered a job.
• Denial of job benefits.
• Being demoted.
• Being suspended.
• Termination.
• Being transferred to a less desirable role.
• Wage reduction.
• Spreading misinformation.
• Exclusion.

On the other hand, minor annoyances or actions that are not likely to dissuade an employee from engaging in protected activity will not count as “materially adverse.” For example, temporarily moving someone from an office to a cubicle is, while annoying, not an example of materially adverse action.

What Reasons Can An Employer Use To Defend Itself Against Retaliation Claims?

Protected activity and a materially adverse action both may have occurred, but evidence of the following — on its own or in combination — may severely undermine an employee’s ability to prove the adverse action he or she suffered was motivated by retaliation:

• The employer had a valid and non-retaliatory reason for the action it took, such as poor employee performance, misconduct, or necessary downsizing.
• The employer was not actually aware of the protected activity.
• Job applicants or employees who did not engage in protected activity were also treated the same way.
• There was evidence that the adverse action would have happened anyway, regardless of the existence of a retaliatory motive.

Is An Employee Protected From Poor Job Performance When Filing an Allegation Or Discrimination Claim?

Absolutely not. An employee cannot violate employer rules, neglect his or her job duties, or do anything that may result in poor job performance simply because he or she is participating in an investigation. 

What Can West Coast Employment Lawyers Do For You?

If you have made up your mind to take action, it is important to work with an attorney that specializes in cases like yours. The workplace retaliation lawyers at West Coast Employment Lawyers have extensive experience handling workplace retaliation cases. We will work tirelessly to gather the facts, find and interview eyewitnesses, hire experts, and fight for your rights.

We work on a contingency basis, which means we only get attorney’s fees if we are able to recover for you. Our legal team is available 24/7 and will take care of your case from start to finish. For a free no-obligation consultation with a workplace retaliation attorney in California, contact our office at 1-800-247-9235.